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Outgoing Chief Justice David Maraga has handed over the instruments of power to Deputy Chief Justice Philomena Mbete Mwilu.

The Supreme Court on Monday, January 11 convened a special court ceremony and tributed in his honour, being his last day in office.

Mwilu is mandated to act in the position until the Judicial Service Commission (JSC) recruits a new Chief Justice in the coming months.

Maraga has been the country’s Chief Justice since 2016 after he replaced Willy Mutunga who took an early retirement.

He secured the job after beating Justices Smokin Wanjala, Alnashir Visram, Roselyne Nambuye, Mbogholi Msagha, the late Senior Counsel Philip Kitonga and ouspoken US-based lawyer Prof Makau Mutua.

However, Justice Mwilu is facing serious hurdles as a case was filed in court challenging her appointment as the acting CJ.

Activist Okiya Omtatah filed a case in court seeking orders to restrain Mwilu from taking over as the acting CJ until JSC clears her of the allegations of corruption and abuse of office contained in the four petitions filed at JSC against her. 

Omtatah also sought orders suspending the letter by Maraga, which transferred all his functions to his deputy Mwilu.

The letter directs Mwilu “to perform all duties and functions of CJ” from December 12, 2020 until a new Judiciary boss is appointed in accordance with the law.

Mwilu in response, however, argued that complaints against judges are received by JSC and the mere existence of any such complaints does not bar her from discharging her constitutional, judicial or administrative functions. 

“My case cannot be any different. A judge’s personal integrity does not diminish or end nor does the judge cease being suitable to continue serving on account of pending complaints for removal,” she says in her affidavit.

Mwilu argued that as Deputy Head of the Judiciary, she has performed the very functions notified to her by the CJ via his letter of December 11, 2020, whenever he was away.

The court will pronouncment itself on the matter tomorrow. The Supreme Court, which the CJ heads, is key in determining presidential petitions.

Maraga has had a challenging tenure with the Executive since the nullification of the 2017 presidential election. 

On numerous occasions, he has accused the Executive of under-funding the Judiciary and asked legislators to increase funding to the Judiciary to ease service delivery. 

On August last year, he accused the President of frustrating the appointment of 41 judges proposed by the Judicial Service Commission on July 2019.

He claimed the President’s refusal to swear in the judges despite court orders requiring him to do so within 14 days caused near paralysis of court operations and backlog of cases in the Judiciary.

Maraga also accused the Executive of continuously disregarding court orders and willfully neglecting to settle dozens of decrees issued by various courts against the Government.